‘Rudderless'Qualified Immunity Rulings Leave Law Murky

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By Melissa Stanzione

Feb. 29 — The U.S. Supreme Court is no closer to clarifying its qualified immunity doctrine, described by one scholar as “unstable,” after one summary reversal and one remand so far this term.

The qualified immunity doctrine arises in cases brought against public employees under 42 U.S.C. §1983 and protects them from civil lawsuits.

It says that a government official isn't liable for damages from a violation of federal law unless the law on that violation was clearly established at the time of the violation.

Docket Regulars

Although the Court is “fascinated” with the problem of qualified immunity and has taken several cases a year for years, according to University of Virginia law professor Douglas H. Laycock, its application still remains murky.

For the 2014 term, the Court issued two per curiam summary reversals and one decision on the merits. All three cases reversed the circuit courts' denials of qualified immunity to police officers. This term, the court has issued a per curiam opinion reversing a denial of qualified immunity, and granted, vacated and remanded another case in light of its per curiam decision.

The Supreme Court decides many of these cases “without full argument and opinion because the decisions are ‘fact-specific' and not worth more extended treatment,” John C. Jeffries, a law professor at the University of Virginia and civil rights scholar, told Bloomberg BNA in an e-mail.

These rulings on qualified immunity do “very little” to move the law forward, Jeffries said.

Although the Court must deny some qualified immunity cases, “what I see are the many that are granted,” Laycock, who has written extensively on constitutional law, told Bloomberg BNA in an e-mail.

“Some of them don't seem very important except that they are qualified immunity cases,” he said.

Attempted Guidance

The Supreme Court's guidance on the issue leaves a lot of discretion to lower courts, Michael C. Dorf, a professor at Cornell Law School and constitutional law scholar, told Bloomberg BNA.

Supreme Court precedent holds that an official is immune from suit under Section 1983 unless he has violated a statutory or constitutional right that was clearly established at the time of the challenged conduct, he said.

An officer won't have violated that clearly established right unless the right’s contours were sufficiently definite that any reasonable official would have understood that he was violating it, meaning that existing precedent placed the statutory or constitutional question beyond debate. City of San Francisco v. Sheehan, 83 U.S.L.W. 1704, 2015 BL 152749 (U.S. 2015).

“Qualified immunity is administered, on specific facts, largely by courts rather than juries,” which allows for more room for appellate review of specific decisions, Jeffries said.

The circuits' approach to qualified immunity varies, he said.

For instance, the Ninth Circuit is “notably hostile” to qualified immunity and thus favors civil rights plaintiffs whereas the Eleventh Circuit is “the reverse,” Jeffries said.

“The law of qualified immunity is notoriously unstable. Reviewing specific applications of qualified immunity provides some guidance, but it's a task that must be repeated over and over,” he said.

Why, Why, Why?

Practitioners suggested that the court's interest in taking qualified immunity was not about making law, but about correcting errors in cases they think were decided wrongly.

“Why take cases that don't seem Earth-shaking? Why correct lower-court errors without establishing useful precedent? I strongly suspect that they feel that this is ‘doing the right thing,' ” Nathaniel Burney, a New York defense attorney who has written about qualified immunity told Bloomberg BNA.

“I don't know why the Court is doing this, but they seem to really hate imposing damages liability on public officials,” Laycock said.

The Supreme Court reviews a lot of qualified immunity cases “because it sees lots of inconsistent decisions,” Jeffries said.

Another scholar has a different theory.

“I have the sense that it's not that the Court is especially interested in qualified immunity but that in a lot of the cases that present interesting civil rights issues, there's a qualified immunity question that often ends up derailing the discussion from the substantive issue,” Dorf said.

Dorf explained that for a lot of the civil rights claims that can be brought, the only kind of suit “that realistically is going to make it will be a suit for money damages against an officer.”

History of Qualified Immunity

The Supreme Court “made up qualified immunity out of whole cloth,” Burney said.

The doctrine arises in civil rights cases filed under 42 U.S.C. §1983, which was originally passed in 1871.

During this time of unrest post civil war, Section 1983 allowed private citizens to sue officials who denied them their civil rights, Burney said.

When Section 1983 was passed, “it didn't have the same meaning and scope that it does today,” he said.

“During the 1960s and 1970s, the Court expanded the statute's applicability and made it easier to sue a state actor in federal court. By the end of the 1970s, §1983 had become the go-to statute for civil rights lawsuits,” Burney said.

Starting in the 1980s, the Court “seemed focused on undercutting the scope and effect of Section 1983,” he said.

“The Court decided that some things like false imprisonment and slander wouldn't count as civil rights violations for Section 1983 purposes,” Burney said.

“Among the limitations it added were newfangled ideas of ‘immunity' from being sued. In other words the government officials Section 1983 apparently let you sue couldn't be sued,” he said.

When the law was enacted in 1871, there wasn't an existing legal principle to justify immunity, Burney said. The court has tried to find one, but since there really wasn't one, “they invented it,” he said.

“Instead of basing it on legal principles, they based it on ‘policy' principles, which translates to ‘what we think is best,' ” Burney said.

‘Rudderless' Rulings

The Court's rulings are “rudderless,” Burney said, but the justices' “desired outcome” is generally in favor of granting immunity.

This is due to policy considerations to let the police do their job, he said.

There are two main policy considerations for government immunity, Laycock said.

The arguments “are about protecting the public fisc, and about fears of over-deterrence,” he said.

“If officials worry about liability, they might be afraid to act,” Laycock said.

But officials held liable in these cases are almost always indemnified by the government, he said.

“So will governments, or government officials, be afraid to act for fear of liability? There may be something to that in a few contexts,” Laycock said.

“But often in these cases, the problem is that the official did act, in a way that flouted constitutional rights and caused serious harm to an innocent citizen. We should want to deter that behavior; we should not fear deterring it,” Laycock said.

To contact the reporter on this story: Melissa Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com